Monday’s announcement that Amazon would acquire Twitch for $1.1 billion was preceded several weeks ago by the gaming platform’s announcement that it would mute the audio streams of archived videos, due to unlicensed music. Among other gaming activities, Twitch allows users to watch both live and archived streams of other people playing video games. (According to Amazon’s press release, in July 2014, “more than 55 million unique visitors viewed more than 15 billion minutes of content on Twitch produced by more than 1 million broadcasters, including individual gamers, pro players, publishers, developers, media outlets, conventions and stadium-filling esports organizations.”) Twitch’s decision to use Audible Magic to identify and mute unauthorized in-game and ambient music in the streams of archived material was cited as evidence that Twitch was putting its copyright house in order prior to acquisition by a larger Internet company. The decision also was criticized as an example of what was wrong with our copyright system.

The Twitch muting policy applies to archives of both full streams and highlights clips. The policy raises interesting fair use questions particularly in the highlights context.The muting of music in the highlights resembles the Fourth Circuit’s troubling 2010 decision in Bouchat v. Baltimore Ravens. For the past 17 years, Frederick Bouchat has been enmeshed in litigation with the Ravens and the National Football League over the “Flying B” logo, which the Ravens used for their first three seasons. Prior to the Ravens’ first season in 1996, Bouchat had submitted a drawing of a logo to the chairman of the Maryland Stadium Authority, and a jury found that the Ravens had infringed the copyright in the drawing. A separate jury, however, awarded Bouchat no damages. After the infringement finding, the Ravens changed their logo, adopting the current “Raven Profile” logo. Of course, the Ravens could not remove the infringing logo from the historical record: it still persists in archival footage and photographs.

More recently, Bouchat has litigated over the use of such archival photographs and film of games in which the Ravens players had worn helmets with the infringing Flying B logo. In the 2010 decision, the Fourth Circuit found that the inclusion of footage showing the Flying B logo in season highlights films was not fair use, but that the Ravens’ display of the logo in images in its corporate lobby was. The Fourth Circuit rejected the fair use defense with respect to the highlights films primarily on the grounds that the use was not transformative. The Fourth Circuit held that the logo’s original use was as an on-field identifier. The logo served the same purpose in the highlights films; it allowed viewers to distinguish the two teams.

Judge Niemeyer wrote a sharp dissent, arguing that the

game highlights are historical and biographical, and the Ravens’ only purpose in displaying the Flying B Logo now is to recount and recall that history…The incidental and necessary display of the Flying B Logo in connection with these items is totally transformative of the use of the Flying B Logo–changing from its use as the symbol identifying the Ravens’ franchise to its use as an incidental and necessary part of history.

Judge Niemeyer’s dissent applies squarely in the Twitch context. Music is used in original playing of the game to help establish a certain atmosphere; it contributes to the gamer’s overall entertainment experience. In contrast, the music appears in the highlights of the game to document rather than to entertain; the music is an “incidental and necessary part of the history” of the playing of the game. Highlights of the game without the music would be an incomplete and inaccurate depiction of what happened during the featured parts of the game.

The muting of the audio stream will distort the depiction of the game in another way. The entire audio stream will be muted, not just the unauthorized music detected by Audible Magic. This means that the gamer’s real-time communications with fellow players, including comments, trash-talking, and jokes, will be lost.

Interestingly, the most recent decision in the Bouchat saga, issued in December 2013, actually supports the view that fair use allows the streaming of the music with the highlights. (This decision was the subject of a DisCo post that stressed the irony of a major rights holder, the National Football League, relying on fair use with support of the amicus Motion Picture Association of America.) The 2013 decision concerned the appearance of the Flying B logo in footage included in films about the best and worst draft picks, and in a video about former Ravens star Ray Lewis. The Fourth Circuit found that these uses were transformative because “these videos used the Flying B as part of the historical record to tell stories of past drafts, major events in Ravens history, and player careers.”

The 2013 decision also included great language on the importance of allowing the incidental use of copyrighted works in documentaries.

Were we to require those wishing to produce films and documentaries to receive permission from copyright holders for fleeting factual uses of their works, we would allow those copyright holders to exert enormous influence over new depictions of historical subjects and events. Such a rule would encourage bargaining over the depiction of history by granting copyright holders substantial leverage over select historical facts.

Unfortunately, the 2013 panel defended the reasoning of the 2010 decision. It stood by the notion that the Flying B logo served as an identifier in the highlight films. It distinguished the more recent films about draft picks and Ray Lewis on the basis that these “videos used the historical footage to tell new stories and not simply rehash the seasons….” The 2013 panel also stressed that the Flying B logo was used “only fleeting and insignificantly” in the recent videos, while it “featured substantially, again and again, in the season highlight films.”

These arguments are unconvincing. First, encapsulating a season that lasts six months in a short film is telling a new story. Assembling highlight clips from a game with numerous levels that can last many hours also is telling a new story. The extraction of essential facts is a critical part of writing history.

Second, if an accurate telling of that new story requires the repeated display of a logo, or another copyrighted work, that is in Judge Niemeyer’s words a “necessary and incidental part of history.” For example, many of the protests last week in Ferguson, Missouri occurred near a McDonald’s. A documentary about the protests might include repeated display of the McDonald’s logo. Surely the documentary filmmaker shouldn’t have to airbrush history to appease McDonald’s sensibilities.

To be sure, accurately documenting a video game or a football season may not rise to the same level of social utility as accurately documenting a series of political protests. Nonetheless, precedents established in the context of football season highlights could be applied in other contexts. Hopefully, future courts will more closely follow the holdings in the 2013 Bouchat decision than in the 2010 decision.

Perhaps these uncertainties figured into Twitch’s decision to mute the music on streams of highlights clips and not vigorously assert fair use. As Twitch’s CEO Emmett Shear said with frustration in an “Ask Me Anything” interview with the website Reddit, “I don’t like the laws, I don’t think they’re well designed, but they’re the laws and we have to live with it.” This is an unfortunately common fact of life in user-generated media: uncertainty leads to conservative legal strategies. Over time, conservatism about uses that are likely fair leads to more demands that more (arguably fair) uses must be licensed. As Pat Aufderheide and Peter Jaszi have written, “fair use is like a muscle; unused, it atrophies, while exercise makes it grow.”

At the same time, one shouldn’t be too hard on Twitch. It is continuing to stream live games with the music unmuted, meaning that Twitch still likely relies on fair use. Moreover, the marketplace for online platforms like Twitch is sufficiently competitive; if Twitch’s competitors think they can better thread the needle between mitigating copyright risks and serving their user base, they have ample opportunity to try.

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